This article has been written by Sameera Khan from Amity Law School, Noida

Table of Contents

INTRODUCTION

The Indian Constitution, adopted in 1950, saw its first amendment in 1951. Since then, it has undergone 127 amendments. Article 368 delineates the process of amendment, yet it is bound by the foundational principles of the Constitution. International perspective on amendment procedures of different countries is analyzed. Various countries employ distinct procedures in their amendment processes, and India’s constitution exhibits a blend of flexibility and rigidity, drawing influence from diverse sources. Noteworthy legal decisions have shaped the amendment process in India, with the latest amendments detailed. The landmark judgments are listed. Indian Constitution amendment process presents numerous critiques of which potential solutions have been proposed. Despite of it, constitutional amendments play a vital role in a nation’s progress, enabling it to surmount obstacles and adapt to evolving societal dynamics—a crucial imperative in the contemporary context.

BRIEF OVERVIEW

The Constitution of India, adopted on January 26, 1950, stands as a monumental testament to the visionary aspirations of the nation’s founding fathers. It is not only a legal document but a living embodiment of India’s democratic ideals, social justice, and commitment to pluralism. As of August 2023, There have been a total of 127 amendments since its enactment in 1950. The first amendment happened in 1951. The 42nd amendment in the constitution is known as the mini-constitution.

Comprising a preamble and an extensive body of 470 articles, the Indian Constitution is one of the most comprehensive and detailed written constitutions in the world. Its meticulous drafting process spanned nearly three years, involving rigorous debates, discussions, and the expertise of some of the brightest legal minds of the time. Dr. B.R. Ambedkar, often referred to as the chief architect of the Indian Constitution, played a pivotal role in shaping its contours.

The preamble of the Constitution encapsulates the essence of India’s identity and aspirations. It declares India as a “sovereign, socialist, secular, and democratic republic” committed to securing justice, liberty, equality, and fraternity for its citizens. The preamble also affirms the principles of dignity and unity of the nation.

The body of the Constitution is organized into 25 parts, each dealing with various aspects of governance, rights, and responsibilities. These parts cover a wide range of topics, including fundamental rights, directive principles of state policy, the organization of the central and state governments, the judiciary, citizenship, and the power of local self-government.

Among its most distinctive features is the inclusion of fundamental rights, which are enshrined in Part III of the Constitution. These rights, including the right to equality, freedom of speech and expression, and protection against discrimination, serve as the bedrock of individual liberties and provide citizens with a means to safeguard their dignity and autonomy.

The directive principles of state policy, outlined in Part IV, provide a guiding framework for the government to pursue policies aimed at achieving social and economic justice. Although not enforceable in a court of law, these principles are considered fundamental in the governance of the country.

Moreover, the Constitution emphasizes the separation of powers among the executive, legislature, and judiciary to ensure a system of checks and balances. This intricate system prevents any one branch from unduly concentrating power, thereby safeguarding against authoritarian tendencies.

In conclusion, the Constitution of India stands as a testament to the wisdom, foresight, and democratic spirit of India’s founding fathers. It not only serves as a legal framework but also as a living document that adapts to the evolving needs and challenges of a diverse and dynamic nation. Through its provisions, it seeks to secure justice, liberty, and equality for all citizens, making it the cornerstone of Indian democracy.

CONSTITUTIONAL PROVISIONS FOR AMENDMENT IN INDIA

ARTICLE 368 – THE AMENDING PROCESS

Notwithstanding any provision in this Constitution, Parliament, exercising its constituent power, may amend the Constitution by adding, modifying, or repealing any of its provisions as per the procedure outlined in this article.

An amendment to this Constitution can only be initiated by introducing a Bill for this purpose in either House of Parliament. Once the Bill is passed in each House with a majority vote from the total membership of that House present and voting, it must be presented to the President. Upon the President’s assent, the Constitution is considered amended in accordance with the provisions of the Bill.

However, if an amendment aims to alter:

– Articles 54, 55, 73, 162, or 241,

– Chapter IV of Part V, Chapter V of Part VI, Chapter I of Part XI^{^[1]},

– Any Lists in the Seventh Schedule^{^[2]},

– The representation of States in Parliament,

– Or the provisions of this article,

then the amendment must also be ratified by the legislatures of at least half of the States. This ratification is accomplished through a resolution passed by those State Legislatures before the Bill proposing the amendment is presented to the President for assent.

BASIC STRUCTURE DOCTRINE AND LIMITATION TO AMENDMENTS

While Article 368 grants the power to amend the Constitution, it is not an absolute authority. The Supreme Court of India has established the Basic Structure Doctrine, which asserts that certain core features of the Constitution are beyond the reach of amendments. These core features include the democratic framework, the rule of law, judicial independence, and fundamental rights.

This doctrine serves as a safeguard against any attempt to alter the fundamental principles that form the bedrock of the Indian Constitution. It ensures that while the Constitution remains adaptable, it cannot be tampered with in a way that undermines its essential character.

In summary, Article 368 provides the procedural framework for amending the Constitution, emphasizing the importance of democratic consensus and federal participation. The Basic Structure Doctrine, meanwhile, acts as a crucial check to prevent any amendments that would erode the foundational principles of the Indian Constitution.

TYPES OF AMENDMENT

– Simple Majority Amendments: These amendments can be passed with a majority vote in each house of Parliament. They cover matters that affect specific provisions or aspects of the Constitution without altering its basic structure. Simple majority amendments are crucial for addressing day-to-day legislative needs and adapting to evolving circumstances.

–Special Majority Amendments: These amendments necessitate a more substantial level of support. They require a majority of the total membership of each house (more than half of the members present and voting), as well as a majority of two-thirds of those present and voting. Special majority amendments are reserved for more substantial changes, such as alterations to fundamental rights or changes affecting the federal structure.

-Certain provisions within the Indian Constitution necessitate amendments through both a special majority in Parliament and endorsement by a minimum of half of the State Legislatures.

AMENDMENT PROCEDURES OF OTHER COUNTRIES

United States of America

In the United States, the process for amending the Constitution is detailed in Article V. An amendment can be proposed either by a two-thirds majority in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of state legislatures. Once proposed, the amendment must be ratified by three-fourths of the state legislatures or by conventions in three-fourths of the states.

United Kingdom

The United Kingdom operates under an uncodified constitution, meaning it doesn’t have a single, written document. Amendments to constitutional conventions and practices typically occur through ordinary legislative processes. While there’s no formal procedure for constitutional amendments, major changes often involve the passage of Acts of Parliament, sometimes coupled with referendums.

Canada

In Canada, amendments to the Constitution are governed by the Constitution Act, 1982. There are two methods for amendments: unanimous consent of all provincial legislatures and the federal Parliament, or the consent of the federal Parliament and at least seven provinces, representing at least 50% of the population.

Australia

Amending the Australian Constitution is a multi-step process outlined in Section 128. An amendment must first be passed by an absolute majority in both Houses of Parliament or by a majority in a national referendum. If a referendum is chosen, the amendment must be approved by a majority of voters nationally and a majority in at least four of the six states.

Germany

Germany’s Basic Law, which functions as its constitution, can be amended through a complex process outlined in Article 79. Amendments require a two-thirds majority in both houses of the Federal Diet (Bundestag) and the Federal Council (Bundesrat). Additionally, certain fundamental principles, particularly those pertaining to federalism, cannot be amended.

France

The French Constitution can be amended through a joint session of both houses of Parliament, known as the Congress. Amendments require a three-fifths majority vote. Alternatively, the President may submit an amendment to a referendum if supported by three-fifths of the members of Parliament.

These are the procedures for amending the constitutions of various countries. Each country’s process reflects its unique historical and political context, ensuring that changes to the constitution are made with careful consideration and broad consensus.

IMPORTANT LANDMARK JUDGMENTS

Sajjan Singh vs state of Rajasthan

The judgement was that the fundamental rights could be amended as long as they were indirect , incidental or insignificant on power under Article 226

Shankari Prasad v. Union of India (1951) upheld the validity of the First Amendment Act of 1951. The Supreme Court ruled that Parliament had the authority to amend any part of the Constitution, including fundamental rights, under Article 368. This decision, though later overruled, initially affirmed parliamentary sovereignty and the power to amend fundamental rights.

Golak Nath v. State of Punjab (1967) established that Parliament cannot amend or abridge fundamental rights. This landmark ruling overturned the previous decision in Shankari Prasad v. Union of India, emphasizing the immutability of these rights in the face of constitutional amendments.

The 24th Amendment Act of 1971 reasserted Parliament’s authority to amend the Constitution, including fundamental rights. It clarified that amendments made under Article 368 were not subject to judicial review, addressing the aftermath of the Golaknath case. This reaffirmed Parliament’s supremacy while safeguarding individual liberties.

In the Keshavananda Bharati v. State of Kerala (1973) case, the Supreme Court established the “Basic Structure Doctrine.” It ruled that while Parliament could amend the Constitution, it couldn’t alter its fundamental features like democracy, federalism, and judicial review. This landmark judgment imposed limitations on the amending power of Parliament, safeguarding core constitutional principles.

The Supreme Court, in the case of Smt. Indira Nehru Gandhi vs. Raj Narain, reiterated and put into practice the concept of the Constitution’s basic structure. This led to the nullification of specific constitutional amendments. Also by Minerva Mills Ltd. v. Union of India (1980) case.

Summary of Supreme Court Decisions:

Parliament’s amending powers are restricted.
Fundamental features of the Constitution cannot be altered.
Amendment procedures must be strictly followed, non-compliance renders an amendment invalid.
Clauses (4) and (5) added to Art. 368 by the 42nd Amendment Act were deemed invalid as they impeded judicial review.
Parliament cannot expand its amending authority through Art. 368 amendments.

RECENT TRENDS IN THE AMENDMENT OF THE INDIAN CONSTITUTION

99th Amendment (2014): Established the National Judicial Appointments Commission.

100th Amendment (2015): Pertained to the Land Boundary Agreement (LBA) between India and Bangladesh.

101st Amendment (2017): Implemented the Goods and Services Tax (GST) in India from 1st July 2017.

102nd Amendment (2018): Granted constitutional status to the National Commission for Backward Classes.

103rd Amendment (2019): Provided up to 10% reservation for Economically Weaker Sections (EWSs).

104th Amendment (2020): Expanded reserved seats for SCs and STs in the Lok Sabha and state assemblies.

105th Amendment Act of 2021; This bill brings about changes to the constitution, enabling states and union territories to compile their respective lists of socially and educationally disadvantaged classes. the State Government was once again in charge of recognizing SEBCs, or socially and educationally backward classes.

106th amendment of 2023; The President just recently gave his assent to the Constitution (106th Amendment) Act 2023. According to this law, women will be given a 15-year reservation of one-third of all seats in the House of the People, each state’s legislature, and the legislature of Delhi’s national capital territory.

CRITIQUE OF THE AMENDMENT PROCEDURES

The amendments in the constitution are highly useful as they cater to the societal changes and also help in removing hindrances and challenges and help in the progression of the country. There are several examples of it like the shah bano case , the ayodhaya matter case , etc.

However –

– The initiation of amendments is exclusively vested in the Parliament, with states lacking this authority.

-States possess only one avenue to propose amendments, namely, establishing a legislative council.

-The Constitution lacks specification regarding the time frame for state legislatures to ratify or reject proposed amendments.

-There is no explicit provision addressing whether states can retract their approval once granted.

-The absence of a dedicated governing body for this process is notable.

-The requirement for consent from state legislatures arises only in select cases.

-The Constitution does not provide for convening a joint session for this purpose.

-Ambiguous provisions offer a broad avenue for legal challenges, potentially leading to judicial intervention.

SUGGESTIONS

-States’ Initiative in Amendments

Suggestion: Consider allowing states to propose amendments, subject to certain criteria and approval by a majority of states.

-Limited Proposal Avenue

Solution: Expand the avenues for states to suggest amendments, providing multiple channels for their input.

-Timely Ratification or Rejection

Recommendation: Establish a reasonable time frame within which state legislatures must ratify or reject proposed amendments.

-Withdrawal of Approval

Proposal: Clearly define the conditions under which states can retract their initial approval of an amendment.

-Absence of a Special Body

Suggestion: Create a dedicated body comprising representatives from both states and the central government to oversee the amendment process.

-Selective Consent Requirement

Solution: Ensure that states’ consent is sought for a broader range of amendments, reflecting a more inclusive decision-making process.

-Joint Sitting Provision

Recommendation: Incorporate a provision for holding joint sittings of state legislatures and Parliament to deliberate on proposed amendments.

-Vague Provisions Leading to Judicial Intervention

Proposal: Strengthen the clarity and specificity of constitutional language to minimize potential ambiguity and legal challenges.

By implementing these suggestions, the amendment procedure can be enhanced to address the identified criticisms, fostering a more inclusive and effective process of constitutional reform.

CONCLUSION

The Indian constitution adopted on 1950 was amended first time in 1951. Since then there have been 127 amendments. The article 368 defines the amendment process. However, there are limitation to it considering the basic doctrine of the Constitution. Different procedures are followed in different countries having their own uniqueness and india has adopted a flexible and rigid constitution, which is influenced by various countries as well. Some important landmark judgments of amendment of indian constitution are mentioned. The most recent amendments in the constitution are also stated. The amendment of Indian constitution has several challenges and the suggestions to them are as mentioned. However , the amendment of the constitution helps in the progress of ones nation, overcoming the hurdles and adapting to societal changes which is the most significant impact and need of the hour.